Section-41
The case of the plaintiff was that by 3 registered sale deeds exhibits-2, 2(A), 2(B), he transferred the suit land to defendant 3 on 22.04.1974 and the defendant -3 in his turn, by another deed of conveyance registered, exhibit- 1, on 11 same date agreed to recovery the said land to the plaintiff on receipt of Taka 6,000.00—if one wants to be Projected under Section -410 the transfer of property Act, he is required to prove that he took all reasonable care to ascertain the title of his vendor. He inquired at least in the local Sub-Registrars office to know if the land had any charge or encumbrance or not to establish his bona fide. He would naturally try to get all the documents of title and possession from his vendor. Onus is very heavy on him. There is no onus on the other side the defendants 1 and 2 pleaded that they were bona fide purchasers for value without notice of the Ekrarnama. But they did neither plead nor lead any evidence that they took any steps to ascertain the title of
their vendor, defendant 3 or their purchased land. i.e. the suit land did not have any charge or encumbrance. They did not make any inquiry even in the local registration office. They did not want to get the documents of title or possession. In their deeds, exhibit A(2) and A(3) though executed and registered about four years apart. It is written in verbatim, to trace, the title the defendant 3 is ‘খরিদ সূত্রে মালিক দখলকার ও মালিক বটে’ This vital fact of purchase from the plaintiff was deliberately suppressed exhibits A(2) and A(3, Purpose was very clear, not to divulge the knowledge about the Ekramama.
In his deposition, defendant 1 as DW- 1 stated that the plaintiff transferred the land to the defendant 3 by an out and out sale, In cross examination, he admitted that defendant 3 on being asked told him that the original Kabala was lying with the plaintiff. He did not try to obtain the Kabala. Defendant 2 as DW-2 deposed in the same vein that original Kabala was with the plaintiff and he did not try to get the Kabala. Both of them however, stated that they purchased seeing the copy of the Kabala, But they did not adduce the copy to probe their
bona fide.
Mrs. Wahida Begum & Ors. Vs. Tajul Islam & Ors. 8 BLT (HCD)-238
Section-52
The Miscellaneous case for pro-emption was disposed of and allowed on 27.06.1983 Aforesaid two deeds of re-conveyance were executed on 28.02.1983. The finding of the trial court that the deed of re-conveyance is hit by doctrine of lis pendents under section – 52 of the Transfer of Property Act was rightly arrived at.
Jahangir Alam Vs. Sri Sailish Chandra & Ors. 9 BLT (HCD)-78
Section-52
In the instant case the purchaser did not adduce any evidence to show when the purchaser go the purchased land mutated in his name. But. Exts. Uma seris clearly show those were issued during the Pendency of the proceeding for pre-emption. If it is so, such mutation or subdivision is not based on any lawful order of a Revenue officer. Because the order admittedly obtained without service of notice upon the pre-emptor and his brothers and sisters must be also hit by the doctrine of lis pendans under Section 52 of the transfer of
property Act.
Harunur Rashid Vs. Afroza Khanam & Ors. 9 BLT (HCD)-135
Section —52 During pendency of the pre-emption Case
If inspite of re-transfer or reconveyance to the original vendor subsequent to filing of the case seeking per-emption, the pre-emption is allowed, then the Principle of us pendense also will be applicable in the pre-emption case.
Ambiya Khatun & Ors. Vs. Noor Ahmed & Ors 13 BLT (AD)206
Section-52
The effect of section 52 of Transfer of Property Act is not to wipe out a sale pendentelite altogether but to subordinate it to the rights based on the decree or the order passed in the proceeding. The pendentelite takes the property subject to the result of the suit or proceeding. It is to be noticed that the right under the decree or order is sought to be protected by the doctrine of lis pendens. But if proceeding cannot yield any result creating any right in favour of a party to the proceeding, the question of applying the Doctrine does not arise.
RAJUK & Ors Vs Habibur Rahman & Ors 13 BLT (HCD)506
Secton-52 & 56 Doctrine of Lis pendence
Appellant Bazlur Rahman transferred the disputed land to appellant Bushra Complex Ltd. when there was no civil suit pending. Therefore the High Court Division committed an error in holding that the transfer the took place during the pendency of suit and was hit by the doctrine of lispendence.
Bushra Complex Ltd. & Ors Vs. Syeda Sabera Khatun & Ors. 12 BLT (AD)-40
Section-53(A)
Held We agree with the finding of the High Court Division that the petitioner Zubeda Ahmed did not acquire any title by way of gift from Hafiz Mohammad Ahmed who himself had no title but merely held power of attorney to transfer.
Mrs. Zubeda Ahmed Vs. Bangladesh & Ors. 10 BLT(AD)-32
Section-53A read with President Order No. 16 of 1972 Article-10 (1)
Respondent No.1 has not brought on record any material to establish that on the date of agreement i.e. on December 29, 1970 as stated in the agreement for sale relating to putting respondent No.1 into possession of the property or that on any date before February 28, 1972 he was put into possession of the property by the owner Wali Mohammad or his attorney Abdur Rahman (respondent No.4) or that he obtained possession before 28-2-1972 and that was in possession at the time when P.0.16 of 1972 become operative. The respondent No.1 in view of the provision of section 5(2) of the Ordinance was required to establish the said facts while he approach the Court of Settlement to get the property released from list of abandoned property, but did not do so, since the statement in the agreement for sale as to putting the respondent No.1 on the day of agreement on receiving part of the consideration money into possession of the property is absurd one because of the fact the agreement was executed at Karachi and as such it was physically impossible as stated in the agreement for sale that on receipt of the part of the consideration money the intended seller upon putting the proposed buyer into possession parted with his possession of the property in question. In the background of the discussion as on the promulgation of President’s Order No.16 of 1972 the property assumed the character of abandoned property and that as per provision of article 10 of the President’s Order No.16 of 1972 the property vested with the Government and that possession of the property in question, though claimed by the respondent No.1, but as was not established was with him on the day P.O. No.16 of 1972 came into force and that as no material has been brought on record whereupon it can be said the possession claimed by the respondent No.1 is of the kind of possession as is being contemplated by the provision of section 53A of the Transfer of Property Act, as such possession of the respondent No.1 of the property in question is not
protected under section 53A of the Transfer of Property Act.
Government of Bangladesh Vs. Mr. K.M. Zaker Hossain 12 BLT (AD)236
Section-54
Receipt of the Consideration money.
Adverse Possession—From the evidence we find that the plaintiff has categorically deposed that he has been in possession on the basis of lease granted through receipt and that the lease has been supported by the receipt issued at a time when the plaintiff was present and the same has been supported by P.W. 2. Defendant No. 1examined on commission stated that he has transferred the suit land in favour of the plaintiff on the basis of receipt which was written in presence of the witnesses and delivered the huts to the plaintiff on receipt of the consideration money and duly signed the receipt evidencing receipt of the amount on 14.02.1949. Since the receipt is not a deed of title could not confer title to the plaintiff under the provision of section 54 of the Transfer of property but the uninterrupted adverse and hostile possession of the plaintiff over a period of 12 years from the date of 14 February 1949 upto 1961 i.e. the
period prior of alleged declaration property as enemy properly, the plaintiff has acquired title by adverse possession.
Aranangsha Datta & Ors. Vs. Satish Chandra Das 12 BLT (AD)-27
Sectiion-58(C)
Section 58(C) of the transfer of property Act contemplates mortgage by conditional sale wherein it has been clearly laid down that where the mortgagor ostensibly sells the mortgage property on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is a mortgage by conditional sale. The law permits for such a document.
Asmat Ali Vs. Abdur Rafique Mridha & Ors. 9 BLT (AD)-77
Section 105 & 106
The monthly tenancy is not heritable but it is a contract between individual and on the death of any of the parties the contract terminates—after the death of the tenant, his heirs cannot be substituted in the suit, in his place.
Abdul Malek & Ors. Vs. Mst. Rezia Begum 9BLT(HCD)-338
Section-105 and 107
If we consider Section 105 with section 107 of the Transfer of property Act it will be clear that in order to constitute lease of an immoveable property of the nature as claimed by the plaintiff a registered instrument signed by both the Government, that is, defendant No. 1 and the plaintiff was necessary mentioning a period and a price to be paid or promised to be paid which is totally absent in this case. I am of the view that the terms ‘allotment’ and ‘allottee’ allottee cannot be synonymous to the terms ‘lease’ and ‘lessee’.
Sugar & Food Industries Vs. Kashem Motors 12 BLT (HCD)-56
Section-106 read with Premises Rent Control Ordinance
Valid and legal notice —agreement, clause speaks for one months notice in order to terminate the tenancy – in the instant case, a notice dated 18.01.1974 was served upon the respondent-tenant determining the tenancy with effect from 28th day of February 1974 and though the period of notice dated 18.01.1974 determining the tenancy with effect from 28.02.1974 was more than period of 30 days contemplated by Ext. 1 the same do not in any way prejudice the petitioner or suffer from any illegality or infirmity in the service of notice determining the tenancy and is in consonance with the terms of Ext. 1 and the provision of law in spite of the fact that the payment of rent was according to the English calendar month and only 15 days notice is required for determination and termination of the tenancy under the provision of Section 106 Transfer of Property Act. In that view of the matter allowing more than one months notice to determine the tenancy has not contravened any of the provision of the Transfer of property Act or the terms of Ext. 1 as there was no alteration or variation thereof and the same is valued compliance with the agreement between the parties and thus the notice determining the tenancy is also a valid one.
Sontosh Mukar Das Vs. Hajee Badiur Rahman. 10 BLT (AD)-59
Section-107
Abdul Hakim raised construction in the suit land is not disputed by the defendants. In view of such facts, though the suit land was recorded in the name of the defendants, I am of the opinion that such record will not stand on the way in getting a decree by the plaintiffs in the suit since the plaintiffs have acquired a heritable, non-ejectable right in the suit land, particularly when the said S.A. record which. was prepared after 1960, after the NonAgricultural Tenancy Act 1949 came into force. I am further of the view that the plaintiffs have acquired a right which cannot be said anything less than title in the suit land.
Ramjan Mia & Ors. Vs. Idu Mw & Ors. 10 BLT (HCD)-229
Section- 111(g)
Only requirement of clause (g) is that the lessor does some act showing his intention to determine the lease and there is no reason why the lessors election by way of a notice must be prior to the institution of the suit. In a case of forfeiture of tenancy for denial of title, written notice of lessor’s intention to determine the lease is not compulsory and must be optional as the notice is not a part of the cause of action for such eviction and that the cause of action is the denial of the landlord’s title resulting determination of the tenancy by forfeiture.
Zohra Khatton & Ors. Vs. Ekamul Haque Chowdhury & Ors. 10 BLT (AD)-171.